The following are the comments of the American Immigration Lawyers
Association (AILA) to the interim regulation regarding the premium processing
program. AILA is a voluntary bar association of more than 7,000
attorneys and law professors who practice and teach in the field of immigration
and nationality law. AILA members represent persons, entities and
businesses across the immigration spectrum, as well as teach and advocate on all
fronts involving immigration issues.

Our members represent a wide spectrum of individuals and entities seeking
adjudications from the INS, and thus have the opportunity to recognize the
extent and variety of demands placed on the Immigration and Naturalization
Service’s adjudication arms. It is clear that the INS needs additional resources
to address the massive backlog of filings that has built up in most of its
offices.[1] However, AILA does not believe that the
premium processing program is the way to obtain those resources.
Delays have become so profound in many INS offices that rights and opportunities
can be lost because of the delays. Children “age out” with the passage of
time. Petitioners die. Job offers are lost due to the inability to
bring the employee on board in a timely manner. Charging a
fee—particularly a fee as substantial as the one attached to this program—means
that only those who have substantial financial resources can afford to have true
access to

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processing. Paying your way to the front of the line is deeply
unfair to those with long-pending petitions and applications.

AILA also is concerned about the impact that premium processing will
have on other, regular processing. There is some history (i.e., the push
to catch up on naturalization) to cause concern that pouring resources into one
area results in other areas falling behind. We recognize that INS believes
that it will be able to use the resources obtained from premium processing to
improve processing of other petitions, but we worry that, by the

time the additional personnel are hired and trained, those other filings will
be so severely backlogged that they will be beyond rescue.

Also, if the premium processing program becomes an important source of
revenue, INS will have a marked disincentive to improve regular
processing. We already have seen the first signs of this phenomenon.
The Vermont Service Center announced in April that processing times for O and P
petitions can be expected to more than quadruple. Petitioners calling to
Service Centers to check on their O and P petitions have been told by
information officers that fast service on their petitions is now a thing of the
past and that “you just have to pay” if you want adjudication within any
predictable time frame. This is, in essence, building a market for the
product by making the alternative so unattractive that you have no choice but to
buy the product, no matter what the cost. Because there is not a competing
adjudicative body to send the petition to, petitioners have no alternative but
to pay whatever fee INS chooses to charge.

INS should instead look to other funding sources, such as demanding
more appropriated funds for these important functions and pricing regular filing
fees more realistically for the resources they use.

Despite our philosophical objections to this program, it appears that
the program is going forward. In many respects, the Service’s initial
implementation of the new procedures has been efficient and successful.
Therefore, AILA would like to comment on some specific aspects of the program as
reflected in the interim regulations

Response Time After RFEs, NOIDs,
etc

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program, so it is becoming increasingly clear that such a guarantee
will be necessary if the program is to have any credibility.

Keeping Notices Reasonable

Early experience has shown a rash of unreasonable RFEs in response to
filings. Whether by coincidence or the result of a peculiarity of how the
premium processing program is staffed, AILA members have reported what seems to
be a high percentage of RFEs in cases that would rarely have received an RFE in
the regular processing lines. While some RFEs have been unusually detailed
and reflective of a real effort to review the

filing, others have been so boilerplate that wording like “[insert petitioner
name here]” has appeared on the RFE. These RFEs do little more than repeat
the wording of the regulations without giving any indication of what is the real
problem or question about the case. Extra care should always be taken to
avoid sending RFEs like this, but it is particularly offensive to petitioners
when they have paid an extra $1,000 for reasonable service.

Obtaining Useable Results

A key area left unanswered by the interim regulation, and causing a
problem in the actual practice of the program, is making the result useable to
the petitioner and beneficiary within a reasonable time frame. It is not
enough that INS approve the petition within 15 days—the item that makes that
approval useable must be gotten into the proper hands within 15 days. For
changes or extensions of status, this means getting the I-797 notice, complete
with attached I-94 card, to the petitioner so that the beneficiary can begin
work. For consular notification cases, this means getting the original
notice to the petitioner and the notification to the consulate. No
provision is made in the interim regulation to guarantee a useable
result.

AILA recommends that INS make use of an overnight courier—whether it be
USPS Express Mail or a private vendor—to send approval notices to the petitioner
and to the consulate. We also strongly suggest that INS fax or otherwise
notify the consul, and follow up with the consul to ensure that it received the
notification. Indeed, consular notifications have been the area in which
AILA members have experienced the most problems with receiving useable
results. Extra efforts to achieve these results should be part of anything
billed as “premium” service.

Communications

AILA welcomes INS’ experimentation in this program with improved means
of communications, and hopes that the Service is sincere in its expressed desire
to

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eventually transfer those means to regular processing. The
premium processing program advertises a level of communication and
responsiveness generally connected with any reasonable customer service
operation, but well above the service and communication level offered in regular
processing.[2]

To date, achievement of this communication level has been mixed in the
premium processing program. Email communications seem to work well,
although sometimes several exchanges are necessary before an issue is understood
and worked out. Also, utilization of e-mail communication is uneven among
the Service Centers. Vermont should be congratulated for the manner in which it
confirms filings under the program. Telephone communication has been more
problematic. The CSC premium processing telephone lines frequently do not
work, and the automated system often does not recognize premium processing cases
as being premium processing. We hope to see these situations improve, not
worsen, as more petition types are added to the program.

Regular
Expedites

15IN01015

[1] We
do believe, however, that INS could better control its waste of resources.
Over the past two years, we have seen a marked increase in unnecessary and
ill-conceived Requests for Evidence (“RFEs”), which use up a substantial amount
of resources. Many of these RFEs request evidence already provided, raise
issues unrelated to the standards for the benefit being sought, appear to be
unfocused “fishing expeditions,” or—all too frequently—display an attempt to
re-adjudicate matters already decided by the Service for which there is no
reason to believe that either the facts or the law have
changed. These needless RFEs are responsible for at least some
part of the growing backlogs.
[2]
Meaningful communication by the public with the Service Centers has essentially
disappeared in the regular processing lines. If processing of a filing is
delayed or otherwise runs into a problem at two of the Service Centers (Texas
and California), one can only send a fax. At the other two (Vermont and
Nebraska), the only option is to call an already drastically overloaded public
information line. Even these means of communication are frequently
unavailable. The fax lines at Texas and California are frequently
disconnected. The telephone line at Vermont often is out of service, or is
busy for days on end.